Tuesday, December 22, 2009

A few days ago, President Obama announced his intention to nominate Sharon Browne to the board of directors of the Legal Services Corporation (LSC). This nomination is a bit baffling. Ms. Brown is a principal attorney and member of the senior management at the conservative Pacific Legal Foundation, an organization that opposes much of what Legal Services stands for and that has supported attempts to block funding for Legal Services agencies. The National Lawyers' Guild has formally called on Pres. Obama to withdraw the nomination. Go here for more on the story and here for the NLG's press release.

A few days ago I commented that this is the time of the year when you start to see "top ten lists"... Here is another one: New York Personal Injury Blog's Year in Review list. It has links to the blog's favorite items of the year. There is a lot of interesting stuff here. Some are related to torts, some are related to professional responsibility and ethics. Take a look.

A recently released Washington bar's ethics committee concludes that lawyers in the state of Washington may accept referrals from foreign law consultants and hire them to provide translation and paralegal services to the referred clients. The division of legal fees between licensed Washington attorneys and foreign lawyers is not prohibited, but the committee cautioned that counsel must structure the arrangement in a way that does not facilitate the consultant's unauthorized practice, and that the lawyer cannot use the arrangement to get around the ban against paying for referrals. The Opinion (Washington State Bar Ass'n Rules of Professional Conduct Comm., Informal Op. 2201) is available here.

Sunday, December 20, 2009

John Kopschinski, a former sales rep whose lawsuit led to the record breaking, eye rolling, jaw dropping $2.3 billion settlement, exposed pharmaceutical giant Pfizer's illegal sales and marketing efforts to promote its Bextra painkiller, was named the most influential person in the world of business ethics by the Ethisphere Institute. Go here for more on the story.

A few days ago, I posted a story about the apparently prevalent practice among the NYPD to falsify records. (See two posts below this). Now comes news that District Attorneys in 44 of New York's 62 counties should review scores of closed criminal cases because a forensic scientist working for the state police routinely failed to perform mandatory tests on crime scene trace evidence like hair fibers and then fraudulently wrote up results. Go here for the full story on Law.com.

Tis that time of the year... As we get closer to the end of the year, we will see "top ten lists" pop up all over ... "top ten cases of the year"... "top ten worst decisions"... "top ten things to keep an eye on for next year" ...and so onIn fact, I promise that I will prepare my own top ten list at some point and publish it here, but for now I am going to link to the ones that start coming up here and there.

And here is the first list of the year. It comes from the Legal Ethics Forum Blog and it is called Top Ten Legal Ethics Stories of 2009. It is an excellent post which includes several lists, actually: the main list is the most important stories, but then there is a list of "honorable mentions" which includes cases, 'scandals', rules changes and ethics opinions.

I don't think there is anything to add to this very carefully prepared collection!

ps: one of the stories in the honorable mention category links to a post that mentions me and one of my comments on this blog!

Thursday, December 17, 2009

Famous federal judge Jack Weinstein has lashed out at the New York Police Department, accusing the department of a proven record of “widespread falsification by arresting officers.” In a four-page decision refusing to throw out a multimillion dollar suit against the city filed by two men who were busted on bogus narcotics charges, Weinstein wrote that "[i]nformal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts ... has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department." He said that while the vast majority of cops don't engage in crooked practices, it was common enough to be an institutional problem. For more on this story go here and here.

An important related question has to be what role, if any, are prosecutors playing in the creation, development or use of falsified evidence?

Yesterday I posted that prosecutorial misconduct resulted in dismissal of charges in a high profile stock-option backdating case. Here is the transcript of the decision (courtesy of the Wall Street Journal and the Legal Ethics Forum).

Tuesday, December 15, 2009

A federal judge has dismissed fraud and conspiracy charges against Broadcom Corp. co-founder Henry T. Nicholas and former Chief Financial Officer William Ruehle in a stock-option backdating case because of prosecutorial misconduct. The prosecutors tried to prevent three key defense witnesses from testifying, improperly contacted attorneys for defense witnesses and leaked information about grand jury proceedings to the media. More on the story here.

Last September, the Legal Services Corp., which distributes funding nationwide for civil legal representation of the poor, released a report saying about half of Americans who need civil legal assistance are not able to get it because of limited resources. Sen. Tom Harkin (D-Iowa) proposed increasing the LSC's budget up to $750 million, an increase of 92.3 percent from last year, but, the 2010 spending package on its way to President Barack Obama's desk will give the LSC a much smaller boost. The LSC will receive $420 million this fiscal year, up from $390 million last year (a 7.7 percent increase). This is far less than many had hoped for--but an increase nonetheless.

On the other hand, the new appropriations bill introduces a very positive change. In 1996, President Clinton signed a bill that, among other anti-legal services provisions, barred legal services programs funded through the federal Legal Services Corporation from seeking statutory attorney fees in cases that they won or settled on behalf of their impoverished clients. This provision hurt already cash-strapped poverty law programs around the nation. The new appropriations bill will allow the agency's grant recipients to pursue attorney fees for the first time in more than a decade. Go here for more on this story.

Monday, December 14, 2009

A criminal defendant who was wrongfully convicted of murder cannot sue prosecutors for their delay in disclosing the exculpatory results of post-conviction DNA test results, the U.S. Court of Appeals for the Second Circuit held Nov. 13 in Warney v. Monroe County, available here.

The court decided that the prosecutors were acting in furtherance of their role as advocates for the state when they made their decision regarding the timing of their disclosure, thus entitling them to absolute immunity from civil liability for their conduct.

"Advocates for the state"? Hmm; I thought prosecutors are supposed to be "ministers of justice" not mere advocates....

In this case, a mentally retarded man was convicted of murder. While he pursued post-conviction relief, the prosecutor received a written report revealing that—contrary to their theory at trial—all the blood at the scene (other than the victim's) belonged to one person and that one person was not the defendant. The prosecutors did not, however, disclose this information until 72 days after they had received the initial report. Eventually, the defendant was released and he filed a federal civil rights lawsuit claiming that prosecutors' foot-dragging prolonged his incarceration in violation of his right to due process.

The Court found the prosecutor was functioning as an advocate, rather than as an investigator or administrator, when he engaged in the conduct at issue and, thus, is protected from liability. The Second Circuit observed that distinguishing between advocacy and administration is especially difficult with respect to prosecutors' conduct in collateral proceedings because “the ‘judicial phase’ is technically finished” but held that the prosecutor deserved “absolute immunity because his conduct was part of "the prosecutor's role as an advocate for the state.”

Here is a link to a review of the book The Complete Idiot's Guide to the Criminal Justice System. I have not seen the book, so I can't say whether I agree with the review, but I thought it was interesting. Hint: the reviewer did not like the book. Among other things, he says, "As I am politically against burning books, I won't suggest it. Bury it. Bury it deep. Oh what the heck, if ever a book needed burning, this is it."

The Legal Profession Blog is reporting that the South Carolina Advisory Committee on Standards of Judicial Conduct has published an opinion that concludes that a judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate. See here.

Note how this is a different approach than the one taken by the Florida Bar in an opinion I mentioned a couple of days ago. See here. For an article in the New York Times about the Florida Bar opinion go here.

Thursday, December 10, 2009

The Legal Profession Blog is reporting today that the Florida Supreme Court has announced the adoption of a new rule that limits the confidential conditional admission feature to persons who are permanent Florida residents, who will engage in practice primarily in Florida and who "can and will be monitored in Florida." the court notes that such admission is a "special admission status sometimes offered to applicants with a history of drug or alcohol abuse or psychological problems..." The change is immediate and to be applied prospectively.

Wednesday, December 9, 2009

The PopTort is reporting that an amendment to the Senate health care bill that would have imposed national wage caps on fees for attorneys' representing injured patients was defeated by a strong bi-partisan vote of 32-66. As the story in the PopTort states, "[c]apping . . . fees is a major agenda item of the so-called “tort reform” movement. The goal is to keep injured patients from getting decent legal assistance . . ." Go here for the full story.

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics. Go here for the full story and links to the relevant documents.

Last summer I posted a comment with the same heading as this one (here) (hence the "part 2"). In it, I explained my position that it is wrong for a court to apply a rule in a way that suggests that its violation is not so bad because the attorney had a good reason to violate it. I think this approach undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. But don't say that it is okay to violate the rule if there is a good reason to do it.

Here is another example, reported by the Legal Profession Blog:

An Arizona hearing officer has recommended the censure of an attorney who arranged loans to clients through an arrangement by which the loans were made by another attorney secured by promissory notes. The attorney lent money to the other lawyer from personal accounts when the other lawyer did not have money to fund a loan. The attorney knew that the other attorney made loans through checks written on a lawyer trust account. The hearing officer found that the arrangements violated current client conflicts rules and business transactions with client provisions. There was no harm, the lawyer had acted negligently and the misconduct was motivated by concern for the welfare of clients. He was "very remorseful" and held an erroneous belief that "what he and [the other lawyer] were doing was okay...

There are two things I find troubling here. First, there is the naive (at best) notion that the conduct in this case was merely negligent and, second, is the notion that a violation of a rule is somehow "less bad" if it is done with good intentions, as I stated above.

The Florida Judicial Ethics Advisory Committee has issued an opinion on ethical issues relating to judges' use of on line social networking sites. Interestingly, it holds that a judge can post comments on a social site as long as the publication of such material does not otherwise violate the Code of Judicial Conduct, BUT a judge can not add lawyers who may appear before the judge as "friends" on a social networking site nor permit such lawyers to add the judge as their "friend."

There have been a lot of reports of prosecutorial misconduct this year. Go here so see my posts on this subject. Here is another recent example, as reported by the Legal Profession Blog: The Arizona Supreme Court has adopted the recommendation of a hearing officer of a 30 day suspension and probation of a prosecutor for a wide and persistent array of ethics violations during a trial. The hearing officer had found that the prosecutor had, among other things, argued facts not in evidence, asked improper questions, expressed personal opinions about guilt and otherwise behaved in a manner that should provide a training lesson of how not to conduct a criminal trial. In final argument, he stated to the jury: "Ladies and Gentlemen, you've been presented a case that is as strong a case as a prosecutor can present you in a court of law." In his rebuttal argument, he told the jurors "The law requires that I not prove this case beyond all doubt, but only that you have to feel comfortable in your decision that [the defendant] is guilty."

The Blog of Legal Times is reporting that the District of Columbia Bar is looking to join the more than 40 state bars around the country that have made participation in a trust program mandatory. Proposed changes to the D.C. Rules of Professional Conduct governing interest on lawyers' trust accounts, or IOLTA, are under review at the D.C. Court of Appeals. Click here for a copy of the D.C. Bar’s proposal, submitted to the court in September. More on the story here.

On Nov 30, the Supreme Court issued a powerful unsigned "per curiam" opinion agreeing that the ineffective assistance of counsel for Florida death row inmate George Porter Jr. prejudiced the sentence he received after his murder trial in 1988. The Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit had previously rejected his ineffective assistance claim. The case is Porter v. McCollum and it is available here,

The judge who ruled that lawyers can't be forced to comply with new federal rules meant to prevent identity theft released his written opinion on Dec. 1. More on the story here. The opinion is available here.

Monday, December 7, 2009

On Friday, November 27, 2009, Disbar Torture Lawyers, www.disbartorturelawyers.com, a group of NGOs representing over a million members, filed complaints with the Washington, D.C. Board of Professional Responsibility requesting disbarment of Bush Administration attorneys John Yoo, Michael Haynes, and Alberto Gonzales. Go here for more on the story.

Sunday, December 6, 2009

Loyal followers of this blog may have noticed fewer posts during the past couple of weeks. That's because I have been busy wrapping up the semester (preparing and teaching the last few classes, writing exams, dealing with faculty committee assignments...) and family preparations for the holidays! I am almost done preparing my exams and will have a few days to try to catch up with my blogging before I start grading exams. Once I start grading, though, I will again take a break from blogging for a little while. So, don't worry if you don't see much activity in the coming weeks. I will catch up eventually. Thank you for your support!

Friday, December 4, 2009

The Virginia State Bar has proposed an ethics opinion that concludes that lawyers should refrain from having sexual relationships with clients. However, some have criticized it for not going far enough, while others are saying it goes too far. Go here for the full story.

Wednesday, December 2, 2009

Here is a link to a cloumn from The Modesto Bee (November 29, 2009 edition) discussing how attorney’s fees may play a role in the national health care debate going on in Congress. For more on the story and some comments go here.

A few days ago, I posted and commented on a video of a deputy stealing a document from a defense attorney in the middle of a court proceeding in Arizona. (See here and here). As you may recall, the deputy was found guilty of contempt for his actions and was ordered to issue a public apology. He refused and has been sentenced to serve some jail time.

The deputy's conduct was outrageous and now comes word that the County Attorney has agreed to appeal the decision of the court and defend the deputy's conduct. Prof. Jonathan Turley criticizes this decision severely here.

Monday, November 30, 2009

Profs. Monroe Freedman and Abbe Smith, authors of Understanding Legal Ethics, a book I often recommend to my students, have written a review of Daniel Markovits's A Modern Legal Ethics which will be published in the Michigan Law Review.

Here is an abstract of the review, which is titled, Misunderstanding Lawyers' Ethics: "The authors argue that Daniel Markovits's recently published book, A Modern Legal Ethics, fundamentally misunderstands what lawyers do on behalf of clients in an adversary system, and how lawyers feel about it. Freedman and Smith argue that not only is Markovits mistaken about the widespread unhappiness of lawyers, he is also misguided in pointing to “lying” and “cheating” as the source of unhappiness and “guilt.” Moreover, the authors argue that Markovits’s proposed “ethic” for rescuing the legal profession is superficial wordplay—ironically derivative of the adversarial advocacy he condemns."

Tuesday, November 24, 2009

In 1996, Congress attached certain rules to the budget of the Legal Services Corp., which funds lawyers for the poor in civil cases, in order to restrict Legal Aid lawyers' representation of their low-income clients. The restrictions, contained in each succeeding budget, prohibit the lawyers from filing class-action suits on behalf of numerous clients. They also bar attorneys from seeking fees that are usually awarded to the winning side in cases involving individual rights, and from lobbying for changes in the law. The rules were challenged in court but this past Monday they survived a federal appeals court test Monday in San Francisco. Go here for the full story from the San Francisco Chronicle.

Monday, November 23, 2009

Commentators continue to announce the death of the billable hour. This short news item from the Wall Street Journal Law Blog has a bit of evidence to back it up. I think it is too early to announce "the year of the flat fee" but I may be wrong.... Go here for the full story.

Friday, November 20, 2009

The appellate court of Illinois (second district) has just issued an opinion in which it reversed a conviction because the trial judge frailed to admonish the defendant of his right to counsel before allowing him to represent himself. For this reason, the Court held that the trial court deprived the defendant of his right to counsel at a critical stage of the proceedings and remanded the case for a new trial. The case is called People v. Vernón and is available here.

Thursday, November 19, 2009

Back in September I commented on the news that the Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — ruled that a man facing the death penalty would not get a new trial despite the fact that the prosecutor and the judge were involved in a romantic affair during the trial. See here.

A few days ago, the National Law Journal and Law.com published a short editorial on the case here.

Here is an interesting fact scenario courtesy of the Legal Profession Blog: a client retained a lawyer to pursue an employment discrimination claim. The attorney did not respond to the employer's motion for summary judgment and the case was dismissed. The client then turned around and sued the attorney for malpractice arguing he was negligent in handling the case, but the trial court dismissed the complaint because the plaintiff could not establish the element of cause in fact. Because the original case appeared to be very weak, it did not look that the client would have won the original case had it not been for the negligent conduct of the attorney.

As any first year torts student knows, this is the so-called "case within the case" problem that legal malpractice plaintiffs face. They have to argue and prove that they would have won the original case and this is extremely difficult to do in most cases.

Interestingly, the court found a way around it. The court remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid.

There is another point I find interesting about this scenario and that is whether the facts support the imposition of discipline. Does the fact that the client could not support his claim of malpractice mean that the attorney's conduct should be 'excused'?

Obviously not. If the attorney's conduct reflects that he violated his duties of competence and diligence (and it certainly looks like it does in this case), the court should refer the case to the disciplinary authorities regardless of the ruling on the malpractice question. In this case, it appears that there had been a disciplinary hearing already but the court does not explain what had been the basis for it.

A few days ago, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. My comment originated in a story originally published by Prof. Jonathan Turley in his blog. A couple of days later, Prof. Turley expressed his view on this topic in an editorial published by USA Today. I am copying it here in full:

Shame is back in the United States with a vengeance.

Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.

Two weeks ago, citizens of Bedford, Pa., were able to gawk at Evelyn Border, 55, and her daughter, Tina Griekspoor, 35. The two had been caught stealing from a child and were told by the local prosecutor that unless they performed a publicly humiliating act, they would be hit with heavy charges. They agreed to appear in front of the courthouse holding signs reading, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you!” Such scenes are being repeated across the country as citizens are told to choose between degrading public acts or long jail sentences.

Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments.

Gum, manure and doghouses

Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

In 2003, Texas Judge Buddie Hahn gave an abusive father a choice between spending 30 days in jail or 30 nights sleeping in a doghouse (He chose the doghouse to be able to keep his job). Likewise, in Ohio, municipal Judge Michael Cicconetti sentenced two teens found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the Jackass Offense.” Cicconetti later ordered a woman to be taken to a remote location to sleep outside for abandoning kittens in parks.

Studies have actually shown limited value in humiliation as a punishment in terms of actual deterrence in crime. Its principle value is found in the political rather than the criminal system. Indeed, Poe used the popularity of his creative punishments to secure a seat in Congress in 2004.

Now, prosecutors and jailers are trying to cut in on the shaming action. In the Bedford case, the punishment was not ordered by a judge but by a prosecutor, Bedford District Attorney Bill Higgins, who promised to seek probation if they demeaned themselves.

“Giving the people what they want” can sometimes get them to forget what they don’t want — like the bread and circuses of Roman emperors. For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.

Likewise, Arizona Sheriff Joe Arpaio has long faced complaints over his heavy-handed tactics against both citizens and illegal immigrants. However, most people know him only as the guy who forced male inmates to wear pink underwear to humiliate them.

Inventing justice

Some judges have faced charges over their meting out personal justice but have received little punishment. Gustavo “Gus” Garza, a justice of the peace in Texas, was given only an admonishment last year when he forced parents to spank their children in front of him in court to avoid heavy fines. In another spanking case, former Alabama judge Herman Thomas actually used shaming punishments as a criminal defense. Thomas was recently acquitted of sodomy and assault after he allegedly took inmates from their cells for spankings and sex in his chambers. Despite testimony alleging spanking and sodomy, Thomas’ lawyer insisted that the judge was merely “mentoring them” and trying to turn them into “productive citizens” in dealing with them in chambers.

All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.

A few days ago, I posted and commented on a video of a deputy stealing a document from a defense attorney in the middle of a court proceeding in Arizona. (See here). Yesterday it was reported that the deputy has been found guilty of contempt for his actions. Some have criticized the penalty as too lenient, while the County Sheriff (who is referred to in one of the stories as "the most controversial sheriff in the country" who "is routinely accused of abusive practices") openly challenged it and accused the judge of pursuing a political agenda against the County Sheriff's office.

What I find more interesting here is the penalty imposed. The judge sentenced the officer to either apologize to the defendant's attorney at a press conference or report to jail. In addition, the order states that even if the deputy apologizes, if the attorney does not find that the apology "was sufficient," the officer would have to report to jail. For a copy of the decision, go here.

It is very strange that the judge essentially leaves it to the defense attorney to decide if the deputy should serve jail time. Essentially, the judge is telling the attorney that the attorney can decide what the appropriate sentence should be.

The requirement of the apology itself also raises the question of whether it is proper to use "shaming" as a punishment, which has been the subject of some discussion in the past few days.

Here are a few links on the story:

News accounts of the sentencing and the response by the Sheriff: here and here (including a video of the Sheriff accusing the judge of bias against his office).

Commentary on the sentence: here and here (on why the officer should have been charged with a crime for stealing property).

Wednesday, November 18, 2009

As previously reported, California recently enacted a pilot program that will provide lawyers for indigent clients in civil cases. See my posts on October 13 and October 27.

Here is a link to a podcast of a discussion on what some people are referring to now as the "civil Gideon" movement. The name comes from the Supreme Court's 1963 decision Gideon v. Wainwright which guaranteed that criminal defendants unable to afford their own lawyer would have one appointed at the public's expense. Should there be a corollary right in at least certain types of civil cases? Go here to listen to the discussion. Note that the first few seconds of the podcast are the end of a previous segment; keep listening for the beginning of the segment on "civil Gideon".

Friday, November 13, 2009

Law.com is reporting today that the California State Bar governors "face the difficult task this week of deciding whether to approve 45 changes in the Rules of Professional Conduct, including an especially controversial one that would let lawyers seek advance conflict-of-interest waivers from clients. Thirteen law professors from around the state have come out against the waiver proposal, saying it would put clients in the position of consenting to conflicts that cannot possibly be known." Go here for the full story and here for a comment on Legal Ethics Forum. Go here for a memo to the Board of Governors discussing the proposals.

Wednesday, November 11, 2009

The Atlanta Journal Constitution reports today (here) that in a case argued yesterday before the Georgia Supreme Court a defendant argued the charges against him should be dismissed (or, at least, that the state should not be allowed to seek the death penalty) because he has been in jail for nearly four years without a trial in violation of his right to a speedy trial. Why has this defendant been held in custody for so long without a trial, you ask? Because the state cannot afford to pay for the man's representation. In other words, the defendant has a right to get the state to provide representation, but the state has no money to do it, so the defendant sits in jail without a trial.

Sunday, November 8, 2009

Last week, Professor Jonathan Turley posted a comment in his website about the fact that some prosecutors are negotiating plea agreements that force citizens to commit acts of humiliation in order to avoid having to face arsh sentence demands. See here. For an older post on the same subject go here.

In the most recent case, a mother and daughter were sentenced to sit outside a courthouse with a sign that stated they stole a gift card from a 9-year-old girl on her birthday. Go to the link above for photos.

Prof. Turley argues this is an erosion of professionalism and our legal system and that public humiliation has little to do with justice in our system. What do you think? Should this type of punishment be considered appropriate use of prosecutorial discretion in seeking alternatives to incarceration? Should judges refuse to approve the plea agreements?

Thursday, November 5, 2009

As part of our discussion of misconduct during discovery, last night I told my students the story of how one time a lawyer tried to steal a document during a deposition I was taking right in front of my eyes. Thus, I could not believe it when I saw this video (below) which has been going around the internet like crazy over the last couple of days. It shows a deputy stealing a document from a defense attorney's file. The attorney quickly displays her concern and anger, which was completely understandable and appropriate. In contrast, the judge didn't seem to be too bothered.

For commentary on the video go to Prof. Jonathan Turley's website here and the Legal Ethics Forum here. More on the story here and here.

Recently I noted the issue of whether a lawyer who is included in the publication "Super Lawyers" should be allowed to publicize that he or she is a super lawyer? See my previous post here. I mentioned then that the New Jersey Supreme Court was debating whether to amend its rules to allow that type of publicity.

The Court has now announced changes to the state's ethics rules to allow lawyers to mention their inclusion in Super Lawyers, Best Lawyers in America or Martindale-Hubbell AV rankings. The changes take effect immediately. Go here for more on the story.

Last night we spent our entire class time talking about misconduct within the limits of the adversary system and most of that time was spent talking about misconduct during the process of discovery in civil cases.

Coincidently, today I saw a related item in the Wall Street Journal law blog. The story starts by stating that discovery disputes "most of them occur most often in regard to opposing counsel, who always seem to be asking for more than you have or claiming to have less than you want" which describes the types of issues we discussed in class last night. But then the story goes on to discuss the on-going dispute between a firm and its own client over the fact that the court imposed sanctions ON THE FIRM because the client failed to disclose information during discovery.

In class, we discussed the famouse Fisons case, where the court imposed sanctions on a firm for its "gamesmanship" and attempts to avoid disclosing a "smoking gun document." In the case discussed in the Wall Street Journal, though, the firm claims it did not disclose the documents in question because the client misled the firm. The firm claims the sanctions should be paid by the client, not by the firm. Go here and here for the full story. Go here for commentary in the Legal Ethics Forum.

Yesterday, the Supreme Court heard oral arguments in Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. For a summary of the facts and the issue take a look at my previous posts here and here. For a very good summary and comments on the oral argument go to the Wall Street Journal law blog here amd Law.com here.

Sunday, November 1, 2009

For the first time in almost 20 years, the Texas Supreme Court has proposed comprehensive changes in the state's disciplinary rules for lawyers, including major amendments to conflicts rules and a new rule prohibiting lawyers from having sex with clients. Go here for the full story.

As we get ready (in my class) to start our discussion of examples of misconduct in the process of discovery in civil litigation, here is a link to an article (with more helpful links) about the Sedona Conference cooperation proclamation. The Sedona Conference is a nonprofit research and educational institute whose members are judges, attorneys and academics, that has hosted conferences and published papers and guidelines suggesting alternative ways to conduct civil discovery. More than anything else, the Conference emphasizes the need to avoid "discovery disputes" and to adopt a view of discovery based on cooperation. The Conference's most recent publication, the The Sedona Conference Cooperation Proclamation (July 2008), is available here.

Saturday, October 31, 2009

A few days ago I reported that the Court of Appeals for the 5th circuit was set to decide whether the presumption that a lawyer who joins a new firm comes to the new firm with knowledge of confidential information related to the cases handled by the lawyer's former firm should be irrebutable. See here and here.

Law.com has just reported that the Court decided the case and held the presumption is rebuttable, which as I discussed in my previous posts, is the correct decision. Go here for the full story. Go here for a copy of the opinion.

I am sure there will more commentary tomorrow from other sites, so check back for updates.

Thursday, October 29, 2009

The Administrator of the Attorney Registration and Disciplinary Commission of Illinois has filed a disciplinary complaint that may generate an interesting discussion of an Illinois Rule of Professional Conduct. The complaint states that the attorney, among other thigns, used abusive and insulting language towards public officers while in a different state and to others while in Illinois in violation of a rule that states it is miconduct to engage in conduct that is "prejudicial to the administration of justice, including adverse discriminatory treatment of others based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status."

In most instances, the language was not used in the context of the practice of law so it is not clear what is the relationship with the notion of "prejudicial to the administration of justice."

It will be interesting to see if the case addresses the question of whether the rule calls for discipline for discriminatory conduct because it is prejudicial to the administration of justice or whether it calls for discipline for discriminatory conduct only if it is prejudicial to the administration of justice.

In most jurisdictions, the rules of professional conduct ban lawyers from providing living expenses for clients involved in litigation at least in part because of the fear that attorneys will start to compete against each other based on the perks they can offer to attract clients. To illustrate, we use the hypo of a lawyer who offers chicken wings and then another who offers chicken dinners and then another who starts offering turkey, and so on....

The following story gives new meaning to the "chicken dinner" issue: go here and here for the full story.

Tuesday, October 27, 2009

A few weeks ago I reported that California had approved a new program based on the notion that indigent civil litigants have a right to getting an attorney appointed to represent them (also known as a "civil Gideon" right) (see here).

There has been a lot of literature recently about ethical issues related to social networking. See my posts and links here, here and here. For posts on "blogging" go here and here.

Here is a new link to a conference on legal/ethical issues related to social networking sponsored by the University of California-Berkeley Law School. It took place just a few days ago and you can listen to the different conference sessions by clicking on the appropriate section on the website.

Sunday, October 25, 2009

Does a lawyer suspended from practice by a state Supreme Court engage in unauthorized practice of law if he continues to represent clients in federal court (within the same state and on matters that involve state law) during the suspension period?

That is the issue presented by a case working its way to the Louisiana Supreme Court. There, the attorney was prohibited by an Order of the Louisiana Supreme Court from practicing in the state of Louisiana, but he was still licensed in the federal court system. The situation was brought to the attention of the federal judges in the Eastern District of Louisiana but they declined to suspend the attorney in the federal court. In other words, the attorney was permitted by the federal court system to continue to practice law in the Eastern District of Louisiana although his Louisiana law license had been suspended by order of the Louisiana Supreme Court.

Once the lawyer served his suspension, he requested reinstatement. The hearing committee decided that the attorney did not violate the terms of the suspension order by continuing to represent Louisiana residents in federal courts and recommended reinstatement.

The Disciplinary Board split 4-4, thus adopting the decision of the hearing committee. The matter is now before the Supreme Court.

One of the dissenting opinions at the Board level concluded that the lawyer’s continued practice in the federal court system was “nothing less than an affront to the authority of the Louisiana Supreme Court and the role the Court plays in ensuring that the public is adequately protected from lawyers who fail to adhere to the appropriate standards of professional conduct.” Another one suggested that by maintaining a law office and by holding himself to the citizens of the state as a lawyer competent to exercise legal judgment and to counsel them on matters of state law, the lawyer violated the suspension order.

This is an interesting question. Obviously, the state Supreme Court has no authority over the lawyer’s practice in federal court. If he was allowed to practice there – particularly after being informed of the state suspension – then he had a perfect right to continue to do so. The fact that may make a difference, though, is that the attorney was not representing clients in matters that were exclusively federal. The attorney was practicing state law, so to speak, in federal court. The issue is whether the authority to suspend an attorney from practice is geographical, jurisdictional or even topical.

It will be interesting to see what the state Supreme Court decides.

The case is In Re Joseph Bruno and the decision of the Disciplinary Board and the dissenting opinions are available here.

Wednesday, October 21, 2009

The Illinois Adminstrator has filed a disciplinary complaint alleging three counts of misconduct against an attorney, one of which relates to a "want-ad" for a secretary. Keep reading. You wouldn't believe me if I told you the story, so I am just going to quote this in full.....

"On May 28, 2009, Respondent logged onto the Internet at his law office . . . through AT&T Internet Services, the Internet provider of the attorney who had an office in the same suite and building and from whom Respondent was then renting an office. At approximately 1:25 p.m. Respondent accessed the website, "Craigslist.org," ("Craigslist") and posted an ad in the "Adult Gigs" section of the classified advertisements of Craigslist. The title of the post was "Loop lawyers hiring secretary/legal assistant." The post read as follows:

Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.

. . . On or about May 28, 2009, at 10:26 p.m., [an applicant] sent Respondent an e-mail response to Respondent’s posting. . . .Respondent responded by e-mail to [her] e-mail. Respondent’s response read as follows:

. . . Thank you for your interest in the job. I just wanted to give you some more info about the job and see if you are still interested in interviewing. Our law firm is a boutique firm, concentrating solely in immigration law. . . . You would be working with the two partners of the firm. Your duties will include the general secretarial work and legal work. The legal work will include filling out visa applications, etc.

. . . you would [also] be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us. If you think you’re comfortable so far, please let me know and we can proceed with the process. The next step is to set up an interview. . . . .

Lastly, we’ve actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you’re comfortable with that aspect, because I don’t want you to do anything that you’re not comfortable with. So since that time, we’ve decided that as part of the interview process you’ll be required to perform for us sexually (i didn’t do this before with the other girls i hired, now i think i have to because they couldn’t handle it). Because that aspect is an integral part of the job, I think it’s necessary to see if you can do that, because it’ll predict future behavior of you being able to handle it when you have the job.

If you’re still okay with everything, let me know what you’re availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.

. . . [The applicant] was frightened by Respondent’s response and did not reply to Respondent’s e-mail. On or about June 1, 2009, [the applicant] sent a request for investigation to the Administrator of the Illinois Attorney Registration and Disciplinary Commission . . . As a result of [her] request, on June 3, 2009, the Administrator docketed an investigation... [and contacted the lawyer]. . . . In his response to counsel for the Administrator, Respondent stated as follows:

…It appears that somebody with malice [sic] intentions has used my business information to post the advertisement on Craigslist. I did not post the advertisement for a legal secretary…

Respondent’s statement that he did not post the advertisement on Craigslist...was false, and Respondent knew it was false when he made it, because Respondent did in fact post the advertisement on Craigslist and knew when he responded to the ARDC investigation that he had in fact posted the advertisement. . . .

On September 22, 2009, Respondent appeared for a sworn statement at the Chicago office of the Attorney Registration and Disciplinary Commission. At that time, Respondent was sworn upon his oath. In his statement, Respondent acknowledged that he posted the May 28, 2009 Craigslist advertisement and sent the May 29, 2009 responsive e-mail to [the applicant]..."

So, there you have it. I don't even know what to say!

Thanks to the Legal Profession Blog for the information.

UPDATE (July 2011): This case has been finally decided and the attorney was imposed a one year suspension. Go here for the story.

UPDATE (Dec 1, 2011): The Illinois Supreme Court approved the sanction in this case. For comments and reactions go here and here

Yesterday I posted a link to an article suggesting lawyers should re-think the idea of using social media. For the counter-argument, here is a link to an article called "5 Reasons for Lawyers to Use Social Media" (available here).

For an article with some examples of the wrong uses of social media go here. The examples include the following:

--Prolific blogging when claiming an overuse injury due to excessive use of a keyboard at work.

--Texting between attorney and client under the table during a deposition which, upon revelation, leads to discovery of all those text messages.

--Judge twittering from the bench, which led to judge's resignation.

--Twittering juror led to motion for new trial. Judge in that case denied the motion, but another judge granted it.

--Lawyer asking for continuance due to death in family, while his Facebook page showed him at a party when he was supposed to be at the funeral.

--Facebook "friending" between attorney and judge hearing case led to impermissible ex parte communication, a problem for lawyer and judge alike.

--Lawyer on jury duty, without disclosing he was a lawyer, blogging about the trial. This led to new trial for defendant and bar suspension for the lawyer.

--Defendant doctor blogging about progress of his malpractice trial, including unflattering comments about jurors. Plaintiff found the blog and used it on cross examination. The case settled quickly after that.

Here is a link to an interesting debate as to the duties of an in-house counsel during an internal investigation based on this hypo:

Imagine that in-house counsel is conducting an internal investigation and speaks with an employee whose conduct may have been unlawful. The employee does not have her own counsel, so the in-house lawyer makes clear to the employee that the lawyer represents the company and not the employee herself. The employee is reluctant to speak with the lawyer and the lawyer then says to the employee, "You are subject to the company's employment policies, which require you to speak with me about this matter." Is the lawyer's conduct a violation of the rules?

Monday, October 19, 2009

Here is a link to the Legal Ethics Forum's post and comments on the upcoming 5th Circuit decision about imputed conflicts. Again, as the post states, there is only one way to go here. If the Court decides the presumption is irrebutable the result will be terrible.

Sunday, October 18, 2009

According to the approach of the ABA Model Rules, when a lawyer joins a new firm there is a presumption that the lawyer comes to the new firm with knowledge of confidential information related to the cases handled by the lawyer's former firm. This presumption, however, is rebuttable.

However, Law.com is reporting today that the Court of Appeals for the 5th circuit has a case before it in which the issue is precisely whether that presumption should be irrebutable.

A finding that the presumption is irrebutable would be terrible in many ways. For individual lawyers, it would make it terribly difficult to find a new job because firms will not be willing to open their doors to lawyers who would then force the firms to give up current clients because of the conflicts the new lawyer's presence in the firm would create. For firms, it would mean that they would be subject to being disqualified just because a new lawyer in the firm is thought to have confidential information about a former client even if, in fact, the lawyer could show he or she did not.

Here is another addition to our on going series on "how not to practice law": don't know the terms of your own fee agreement!

It relates to something we covered in class the other day. As you probably remember, the Rules in most jurisdictions state that attorneys can advance court costs and expenses of litigation. Having paid for these expenses, the attorney has a right to recover these expenses, but the recovery of those advances is typically contingent on the result of the litigation. This is so, to avoid the unpleasant situation of having a lawyer going after a client to recover money after the client just lost a case.

Interestingly, Law.com reported last week that a Manhattan judge has taken to task some well-known personal injury attorneys for what she called a "nonsensical and frivolous" bid to recoup the costs of an unsuccessful medical malpractice action. According to the story, the judge began her ruling stating that the conduct of the lawyers illustrates why members of the public hold cynical views of the legal profession. The Judge concluded that the firm's retainer agreement made recovery of the expenses contingent on the recovery on the case and since there was no recovery in the case, the claim for the expenses was frivolous. Accordingly, she issued an order to show cause why the lawyers should not be sanctioned.

Saturday, October 17, 2009

Law.com is reporting today that the US Justice Department recently outlined a plan to ensure prosecutors play by the rules when dealing with evidence. Think about that for a moment. We need a full out effort by the Dept of Justice to make sure prosecutors play by the rules. And here I thought professionalism and the duty to follow rules of professional conduct were there for that...

Assistant Attorney General Lanny Breuer has pitched what he calls a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense. Under current rules, prosecutors only have to give the defense information they plan to use at trial or information that they determine would be exculpatory. Defense lawyers and some judges have argued prosecutors have too much control in trying to glean the defense theory of a case before deciding whether information must be turned over. Go here for the full story.

Richard Susskind has written a book called "The End of Lawyers?" in which he expresses his views on the state of the legal profession and the outlook for the future. Here is a link to a short article in which he discusses the book and his conclusions, which include his idea that law practice will soon consist of five different types of lawyers:

The first will be the "expert trusted adviser." This is the provider of bespoke legal service. The arguments of my book suggest that market pressures will generally discourage lawyers from handling matters in a bespoke manner wherever this is possible. Instead, standardized or computerized service will be preferred. However, on some occasions bespoke work will be unavoidable.

The second category of lawyer for the future is the "enhanced practitioner." This is the individual whose legal skills and knowledge are required not to deliver a bespoke service but, enhanced by modern techniques, to support the delivery of standardized, systematized and (when in-house) packaged legal service.

The third category of lawyer will be the "legal knowledge engineer." Since legal services will be increasingly standardized and (in various ways) computerized, this is the category of people who are going to be needed to organize the large quantities of complex legal content and processes that will need to be analyzed, distilled and then embodied in standard working practices and computer systems.

The fourth category will be the "legal risk manager." The job description of this category of lawyer is to avoid legal problems than resolve them.

Finally, the fifth category of future lawyers is the "legal hybrid", who will be superbly schooled and genuinely expert in other related disciplines and will be able to extend the range of the services they provide in a way that adds value to their clients.

Connecticut has enacted a new law that imposes penalties on "runners" (people who rush to accident scenes or hang out in Emergency rooms in order to steer victims toward specific doctors or personal injury lawyers) and those who hire them. Connecticut is now among 10 states that have enacted such a law. Lawyers will face as much as a year in jail and a fine of up to $5,000 if they're caught hiring runners to drum up personal injury litigation business. The same penalties apply to anyone who is acting as a runner. Go here for the full story.

Thursday, October 15, 2009

US Bankruptcy Judge Alan Jaroslovsky has had enough incompetent lawyers appearing in his courtroom; so he has given them the following notice:

NOTICE TO BAR REGARDING INDIVIDUAL CHAPTER 11 CASES

There has been a recent spate of individual Chapter 11 cases filed by attorneys who have neither the experience nor the education nor the competence to venture into Chapter 11. I believe that there are very few bankruptcy lawyers other than State Bar certified specialists who should be contemplating representation of Chapter 11 debtors in possession.

I see rampant errors being made in issues relating to cash collateral, conflicts of interest, and compensation.

The use of cash collateral without permission, even for necessary expenses, is usually fatal to Chapter 11 cases. There are procedures in place to obtain emergency permission to use cash collateral. If you don’t know them, you should not be taking Chapter 11 cases.

A Chapter 11 is not just a big Chapter 13. If you represent a Chapter 11 debtor in possession, your client is the estate, not the debtor personally. Failure to understand this results in serious liability exposure.

Forget about trying to fix your compensation. You will be paid what I allow, period. I suggest you not spend retainers until your fees are allowed to avoid having to return money you have already spent.

I see frequent malpractice in individual Chapter 11 cases and I am quick to note it on the record. Your employment will not be approved unless you have substantial current malpractice insurance. If you are going “bare,” don’t even think about taking a Chapter 11 case.

For the Judge's official home page go here. The link to this letter appears at the very bottom.

A judge of the US District Court for the Northern District of Illinois has certified a class of plaintiffs in a lawsuit accusing a Skokie lawyer of violating the Telephone Consumer Protection Act by allegedly faxing advertisements to unwilling recipients.The case is Ira Holtzman v. Gregory P. Turza.

The Delaware Supreme Court has issued a long opinion suspending an attorney for his practice of representing buyers and sellers at the same time in real estate transactions. The case is In the Matter of a Member of the Bar of the Supreme Court of the State of Delware: I. Jay Katz, and the opinion is available here.

A couple of days ago I reported that the US Supreme Court was about to hear oral arguments on a case on whether incorrect legal advice about the consequences of a guilty plea should be considered ineffective assistance of counsel (here). Here is a short summary of the argument. Here's another.

The Supreme Court of Ohio today imposed a civil penalty of $6,387,990 against two companies and their co-owners for engaging in the unauthorized practice of law, and issued an injunction permanently barring those companies, their principals and employees from any future marketing or sale of living trusts or other estate planning documents or services to Ohio residents. Also, the Court found that the companies used third-party marketing firms to send direct mail ads to lists of Ohioans 65 and older and also targeted senior citizens with magazine advertising containing exaggerated claims regarding the costs and complications of disposing of their assets through a will. Persons responding to the ads were subjected to high-pressure in-home presentations in which non-attorney sales representatives provided them with legal advice including inflated “estimates” of the costs of probating their estates and the purported savings the customer would realize by purchasing American Family’s standardized living trust document – regardless of the size or composition of that individual’s estate or his/her existing estate planning documents.

Wednesday, October 14, 2009

A little less than a month ago, I reported that a federal District Court Judge had issued a warning to attorney Orly Taitz to stop filing “frivolous” lawsuits alleging that President Obama is ineligible to serve as President. (See here). Today, several sources are reporting that Taitz continued to file motions in the case, including a motion asking the judge to recuse himself and that, in response, the judge has fined the attorney $20,000 stating that “Counsel’s wild accusations may be protected by the First Amendment when she makes them on her blog or in her press conferences, but the federal courts are reserved for hearing genuine legal disputes, not as a platform for political rhetoric and personal insults.” The judge's order is available here.

In his comment on this case, Prof. Jonathan Turley quotes a letter sent by the client that Taitz claimed to be representing sent directly to the judge in which she states she did not authorize Taitz to file any motions or to speak for her. Prof. Turley's coverage of the story is available here.

For more on the story, links and some commentary, you can also go here, here and here.

Here is another installment of our public service series "How NOT to practice law." Today's lesson is an old classic: piss off the judge! or go ahead and do what you can to make the judge's life/job more difficult.

The Wisconsin Court of Appeals has reportedly imposed a fine on a lawyer for getting a citation wrong in a brief. The problem is not that the citation was wrong per se, though. The problem is that the court had to go on a wild chase for the case the lawyer cited. Given that the attorney provided the wrong name of the case, the wrong citation and the wrong deciding court it was hard to figure out if the case actually existed and held what the attorney claimed it did. After some sleuthing, the court eventually did find a case -different name, cite, court, etc. but did not forgive the fact that the attorney's carelessness caused it to waste so much time and effort.

Joint defense agreements do not create former-client conflicts of interest, but a lawyer who participates in a joint defense arrangement may acquire contractual and fiduciary obligations to members of the joint defense group who are not the lawyer's clients, the District of Columbia Bar's ethics committee advised in a September opinion (District of Columbia Bar Legal Ethics Comm., Op. 349, 9/09).

Tuesday, October 13, 2009

The Legal Ethics Forum is reporting today that California just enacted a pilot program that will provide lawyers for indigent clients in civil cases. This is great news and hopefully will grow and expand to other states in the near future.

The Supreme Court will hear arguments in Padilla v. Kentucky today and Perdue v. Kenny A. tomorrow. Padilla involves an ineffective assistance of counsel claim brought by a legal permanent resident whose attorney incorrectly advised him that pleading guilty to three drug-related charges would not result in deportation. The ABA in its amicus brief argues on behalf of Mr. Padilla that a lawyer's duty of competence includes the duty to be informed about the consequences of a guilty plea and to advise the client accordingly. Perdue questions whether a fee awarded pursuant to a federal fee-shifting statute may be enhanced based on the quality of performance and results obtained.

Thanks to Renee Newman Knake of the Legal Ethics Forum for the information and links.

Sunday, October 11, 2009

Many of you may have seen a publication called "Super Lawyers." It is actually an advertising supplement to a magazine. You don't have to pay to be listed, you only pay if you want your name displayed prominently in a large box or in a page with a story about you that looks like news.

Can a lawyer who is included in the publication then publicize that he or she is a super lawyer? This has been the source of much debate recently, particularly in New Jersey where the state Supreme Court is debating whether to amend its rules on advertising to regulate what kind of information lawyers can use to advertise services. For an update on that story go here.

For the thoughts of a practicing attorney who is included in Super Lawyers go here, where he states in part: "What, exactly, do I do with this "honor"? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? . . . I have mixed feelings about this. The company that puts out the information says the lawyers are vetted before they appear. . . . Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. . . . I must confess that this all seems pretty meaningless to me. . . . But that little logo sure looks nice, doesn't it? And it would look great on a website if someone were looking for counsel. (Though not so good if a juror should see it and conclude I was thoroughly full of myself.) . . ."

All students of legal ethics are familiar with Professor Monroe Freedman's famous article on the "trilemma" lawyers face when dealing with possible perjury. Attorneys are supposed to keep their client's confidences secret, to advocate zealously and to disclose perjury. You can't do all three. Something has to give. His original article, published in 1975, started a debate that continues to this day. Literally. Prof. Freedman just posted an invitation to the members and guests of the Legal Ethics Forum to debate the subject. Go here to check it out and refer back to it as more participants will likely contribute to the discussion in the near future.

Thursday, October 8, 2009

After two years of fact-finding and deliberation, New Jersey's Supreme Court announced Thursday that it will require mandatory continuing legal education for all plenary-licensed attorneys, starting next year. Go here for the full story.

Tuesday, October 6, 2009

The Legal Profession blog is reporting today that an attorney was suspended for 60 days, with two years of probation and was ordered to take the MPRE within one year for an incident involving driving under the influence and lying to the police.

To make a long story short, the police were investigating an accident but could not find the occupants of the car. They found a purse with the attorney's address in it and went there to continue the investigation. When asked about the accident, the attorney denied he had been driving.

But then the lawyer's five-year-old son told police that his father was the driver of the car involved in the accident.

The police later confirmed the lawyer was under the influence of alcohol and that his wife had gone to the hospital to get treatment for a minor injury. The lawyer was charged with four felonies, including child abuse and causing injury while driving under the influence and he pleaded guilty to the lesser charges.

Monday, October 5, 2009

I recently commented on how missing a deadline in litigation is one of the dumbest things a lawyer can do (here and here).... Well, now comes word that important changes to the Federal Rules of Civil Procedure will go into effect on December 1, 2009 (unless Congress stops them) that will affect the way time is calculated in federal court litigation.

In a nutshell, the changes seek to standardize how days are calculated by counting all days. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. The Rule that allowed for adding time for service by mail has been deleted.

The Drafting Committee has asked the district courts to revise their Local Rules accordingly, and to do so effective December 1. If it is not the rules will be a mess to deal with.

Here is an interesting case from the Illinois Appellate Court, but before I comment on it, let me say that I have not read the case itself. I am going here based on a newspaper account.

In this case, a plaintiff hired a particular attorney to represent him in a personal injury matter. At the time, the attorney worked for a law firm. The plaintiff entered into a contingency agreement with the firm (and the firm entered into an agreement to split the free with the attorney who referred the case to the firm too.)

The case was handled by the one attorney in the firm to whom the case had been referred, but since the fee would be based on a contingency, the attorney did not keep any detailed records of the time spent on the case.

At some point in time later, the firm fired the attorney handling the case for the firm, but the client decided to keep him as his attorney so the attorney took the case with him. The case eventually settled for $275,000 and then the firm filed a motion essentially seeking to recover what it claimed to be its fee in the case. After the parties agreed to certain disbursements from the settlement amount, they could not agree on how to divide the remaining $82,500.

The trial court then found that the firm was entitled to its original contract fee of one-third of the settlement, less the amount of fees the lawyer was entitled to based on an estimate of the specific time he spent on the case (based on a $300 per hour rate). The attorney, as you would expect, argued that since he did most of the work the analysis should be exactly the opposite: that he should get the one third fee minus the value of whatever the firm could show it did for the case.

On appeal, the appeals court affirmed the trial court's calculations. The court said that a settlement was reached before any depositions were taken and before any substantive motion had been filed and that the "overwhelming" amount of work that had been done by attorneys and legal assistants employed by the firm.

This is a tough one. On the one hand, I sympathize with the notion that the attorney should get the larger chunk of the fee if he did most of the work, but, on the other, the client had a valid contract with the firm -- not with the specific attorney. It would be important to determine what happened when the attorney left the firm and took the client: did he execute a new fee agreement with the client? Did the client clearly release the firm from its duties as his legal representation? And then, of course, there is the important factual matter of who actually performed most of the work -- about which there seems to be a disagreement.

Without more, it is difficult to tell whether the court made the right decision. The case is called Rafael and Magdalena DeLapaz v. Select Construction, Inc., et al., No. 1-08-2072.

Assume a firm represented a client for 22 years in litigation over the estate of her husband. During that period, the client paid hourly fees. Then, at some point, the client agreed to change her agreement to a contingency fee based on the value of the estate. Then, just four months after the contingency fee agreement is reached, the value of the estate is finally settled to be $104.8 million. Should the firm be entitled to a $42 million contingency fee? That is the question in a trial that began this week in New York. For more on the story go here.

Thursday, October 1, 2009

A new report by the Legal Services Corp. (the nonprofit agency that receives and disburses congressional funding to legal aid organizations) finds that half the people who seek legal aid from LSC-funded programs are turned away, primarily because of a lack of resources. The report is available here. For more on the story go here and here.

On Wednesday, November 4, the U.S. Supreme Court will hear oral arguments in a case called Pottawattamie County, Iowa v. Harrington. It will be an important case with implications for the two courses I teach (torts and professional responsibility).

The professional responsibility angle comes from the fact that the issue in the case originates in prosecutorial misconduct. Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.

Prosecutors are lawyers subject to the ethical mandates of the rules of professional conduct. They have a lot of discretion in the performance of their functions but they are also considered ministers of justice whose main duty is to see justice done, not to advocate for a client or for a predetermined result.

But this case is not about the misconduct. It is about a civil cause of action for damages based on the misconduct. As to that cause of action, the prosecutors contend that they have absolute immunity from liability. (The Obama administration has filed an amicus brief in support of this position, by the way.)

Here is the interesting part: prosecutors generally have absolute immunity from civil liability for their conduct in the process of prosecuting the case, but, in addition to being just prosecutors, prosecutors are members of the law enforcement team that investigates and "builds" the cases that they later prosecute. This "dual role" is simply part of their role in the system. Should their right to immunity (or, more accurately, the level of that immunity) change depending on the role they are playing at the time of the alleged violation of civil rights?

In this case, the prosecutors' misconduct initiallytook place while they were involved in investigating the crime since they allegedly conspired with the police to manufacture false evidence. Their misconduct then continued during the trial since they presented perjured testimony.

Therefore, the question is whether prosecutors should be entitled to absolute immunity when they engage in misconduct during the investigative phase of a case even if that misconduct is the basis for subsequent misconduct for which they have absolute immunity.

For a lot more information, on this case copies of the briefs and other documents go to the Supreme Court Wiki site here.

My students and readers of this blog know how I would answer this question... but here is the story:

The Legal Profession blog is reporting that the Oklahoma Supreme Court has reinstated an attorney who had resigned after misappropriating $50,000 from his firm. In dissent, Justice Taylor stated: "I dissent to the reinstatement of the Respondent. He is a thief. He stole over $50,000.00 from his law firm and actively attempted to conceal the theft. He was a court-appointed trustee and stole over $100,000.00 from a bankruptcy estate. He is a convicted felon. He made restitution and apology only after being discovered and confronted."

About a month ago, a former high-ranking in house attorney for Toyota alleged that the auto maker conspired to illegally conceal and withhold evidence in Toyota rollover lawsuits filed by consumers who claimed that vehicle design defects caused severe injuries. For the full story go here, here, here.

Now comes word that a judge has referred the lawyer to the State Bar of California for possibly violating the rules of professional conduct by disclosing confidential attorney-client information. For this aspect of the story go here.

In determining that a law firm should not be removed as counsel in a case where several of its lawyers may be called as witnesses, the U.S. Circuit Court of Appeals for the 3nd Circuit has issued a "new formulation" of the rule requiring the disqualification of attorneys for a conflict of interest by holding that "[W]e now hold that a law firm can be disqualified by imputation only if the movant proves by clear and convincing evidence that (a) the witness will provide testimony prejudicial to the client, and (b) the integrity of the judicial system will suffer as a result." The opinion is available here. For more on the story go here.